Complainant

Respondent

Anonymised Parties

Customer Service Adviser

Online Retailer

Representatives

Self

Finance Director

Act

Complaint/Dispute Reference No.

Date of Receipt

Complaint seeking adjudication by the Workplace Relations Commission under section 77 of the Employment Equality Act, 1998

CA-00022420-002

04/10/2018

Complaint seeking adjudication by the Workplace Relations Commission under the Industrial Relations Acts

CA-00022420-001

04/10/2018

The Complainant was employed by the Respondent as a Group Sales and Customer Service Outlet Adviser on a monthly salary of €2,400 gross from 9th August 2018 to 1st October 2018. The Complaint has submitted an unfair dismissal claim under the IR Acts and an employment equality claim alleging discrimination on the age ground.

For the avoidance of confusion, I would draw the parties’ attention to the different naming conventions used under the IR Acts and Employment Equality Acts.

Under the IR Acts the parties are designated the titles of Worker and Employer, the referral is known as a Dispute and the Adjudication Officer issues a Recommendation. Under the Employment Equality Acts however, the parties are designated the titles of Complainant and Respondent, the referral is known as a Complaint and the Adjudication Officer issues a Decision.  

Under the Employment Equality Acts, I am empowered to name the parties to a WRC referral.   However, as the herein case includes a referral under the IR Act, I am exercising my discretion in not naming the parties.

The Worker submits that:

He commenced employment with the Respondent on 9th August 2018.

On Monday 1st October 2018 he was called into an office by his Line Manager and handed a letter which informed him of the decision to dismiss him from his role.

He was not given any explanation for his dismissal other than being informed that the Employer felt that he was unsuitable for the role.

At no time between the start date of 9th August 2018 and the finish date of 8th October 2018 was he made aware of any concerns relating to his employment.

He was never spoken to or advised of any issues relating to performance, attendance, timekeeping, attitude or behaviour.

The Employer submits that:

The Worker commenced employment with the Employer on 9th August 2018 as a Group Sales and Customer Service Outlet Adviser.

As referred to in his employment contract which was signed by the Worker he was placed on a 3 month probationary period.

The contract of employment stated that the first three months of the Worker’s employment were probationary and that "successful completion" of his probationary period is "subject to satisfactory performance". The contract of employment further states that employment may be terminated "during or at the end of [the] probationary period", giving one weeks' written notice of termination or payment "in lieu of all or part of any notice period which...the Employer is required to give."

As such, it is clear that, as a matter of contract, the Employer may terminate employment at any time during the probationary period giving one week's notice or payment in lieu of notice. This contract was accepted by the Worker when he accepted the employment.

The Worker’s Line Manager, was informed on 27th September 2018 by another employee that they were "uncomfortable" working with the Worker as he had made “inappropriate comments" towards them. The employee did not want the matter to be raised with the Worker as they felt it would "create an atmosphere" within the department in which the employee and the Worker both worked and, in light of this, the Line Manager chose not to raise the issue with the Worker.

On 28th September 2018, another employee approached the Line Manager regarding the Worker, outlining that "inappropriate comments” were made regarding that employee being pregnant. The relevant employee was not, in fact, pregnant and "did not know why the Worker would continue making the inappropriate comments even after she had asked him to stop."

The Line Manager raised the issue with the Operations Manager who agreed with the Line Manager that the Worker should not be making such comments to colleagues and that action should be taken.

The matter was then raised with the Finance Director who advised that if the Line Manager and Operations Manager weren't happy with the Worker’s performance and did not think it would improve, given that he was still serving his probationary period, they should arrange a meeting with him and terminate his employment with one week's notice. It was at the Line Manager’s discretion whether or not the Worker should work his notice period but, on reflection, the Line Manager felt that "the issues raised were too serious" and he should be paid in lieu of notice.

The Line Manager met with the Worker on 1st October 2018 and informed him that complaints had been made against him by colleagues relating to "offensive comments" made by him to them. The Line Manager did not disclose to the Worker by whom the complaints were made or the exact nature of the comments made by him.

A letter was given to the Worker during this meeting, the contents of which the Line Manager outlined to him. As set out in the letter the Worker’s employment contract was terminated, effective immediately. The letter stipulated that the Employer, as per the terms of the Worker’s employment contract, had employed the Worker on a probationary period "to form an opinion on [his] suitability for permanent employment” and "successful completion of this probationary period was subject to satisfactory performance on [his] part". The letter confirmed that the Employer was not of the view that the Worker was suitable for the role.

The Worker was informed that he would be paid in lieu of his one week notice period and if he had any questions to contact the Operations Manager.

The Employer rejects the herein claim on the following basis:

The Worker was made aware that he was required to pass his probationary period to secure this role on a permanent basis.

The Worker’s contract of employment specifically states that "successful completion of [the] probationary period is subject to satisfactory performance" and that employment may be terminated "during or at the end of [the] probationary period”. As such, it was the Employer’s expectation that it was entitled to terminate under the terms of the Worker’s contract of employment and they proceeded on that basis.

In light of the comments made by the Worker to two of his colleagues, the Employer made the decision that he was not suitable for the role with the Employer and, guided by the probation policy under the Worker’s contract of employment, they chose to terminate his employment.

The Employer appears to be under the misapprehension that an employee on probation, who is facing the possibility of dismissal, is not entitled to the same procedural fairness as is afforded to a permanent employee in a similar situation.

Whilst an employee with less than twelve months of service is not covered by the Unfair Dismissals Acts, the fact that they may be on probation does not negate their entitlement to fair procedures in relation to grievance and disciplinary matters.

In a recent well-publicised Labour Court determination concerning an employee of the Park Hotel Kenmare (LCR21798) who was dismissed while on probation, the Court found that:

“Where an employee is considered unsuitable for permanent employment, the Court accepts that an employer has the right, during a probationary period, to decide not to retain that employee in employment. However, the Court takes the view that this can only be carried out where the employer adheres strictly to fair procedures.

… The Court has consistently held the view that it is imperative that an employer in a dismissal case must not only show that there were substantial grounds justifying the dismissal but also that fair and proper procedures were followed before the dismissal takes place. This requirement of procedural fairness is rooted in the common law concept of natural justice.

The Court is satisfied that the Claimant was not provided with details of any performance issues; no warning was given that his employment was in jeopardy; he was not afforded the right to representation; he was not provided with reasons for his dismissal and he was not afforded an opportunity to reply. Therefore, the Court is satisfied that he was denied natural justice.”

The Code of Practice on Grievance and Disciplinary Procedures (SI 146 of 2000), which promotes best practice in the conduct of grievance and disciplinary procedures, emphasises the importance of procedures to ensure fairness and natural justice.

The Code of Practice emphasises that good practice entails a number of stages in the discipline and grievance process as follows:

·        That employee grievances are fairly examined and processed

·        That details of any allegations or complaints are put to the employee concerned

·        That the employee concerned is given the opportunity to respond fully to any such allegations or complaints

·        That the employee concerned is given the opportunity to avail of the right to be represented during the procedure

·        That the employee concerned has the right to a fair and impartial determination of the issues concerned, taking into account any representations made by, or on behalf of, the employee and any other relevant or appropriate evidence, factors, circumstances.

Similarly to the situation that pertained in the Labour Court case referenced above, it is clear from evidence adduced at the hearing that the Worker in the herein case was not provided with details of any performance issue, he was not aware that he was in danger of losing his job; he was not afforded the right to representation. Whilst the Worker was informed that colleagues had made allegations that he had made inappropriate remarks to them, he was not provided with details of the alleged remarks.

Prior to the meeting of 1st October 2018, the Employer had already determined to dismiss the Worker as is evidenced by the fact that he was handed his letter of dismissal at the meeting. In these circumstances, it is clear that the Worker was not afforded a meaningful right of reply.

Dismissal from employment is a traumatic experience for any Worker which may cause reputational damage and may impact on the Worker’s ability to secure future employment. The trauma is exacerbated when fair procedures are not followed.    

In the herein case, I am satisfied that the Employer’s handling of the entire matter clearly breached the Worker’s right to fair procedures and natural justice.

I recommend that the Employer pay the Worker the sum of €5,000 in compensation for his unfair dismissal.

The Complainant submits that:

On Monday 1st October 2018 he was called into an office by his Line Manager and handed a letter which informed him of the decision to dismiss him from his employment with the Respondent. No explanation was provided other than being informed that the Respondent felt that he was unsuitable for the role.

At no time between the start date of 9th August 2018 and the finish date of 8th October 2018 was he made aware of any concerns relating to his employment.

At no time during this period was he led to believe that his unsuitability for the role was being considered.

At no time during this period was he spoken to or advised of any issues relating to performance, attendance, timekeeping, attitude or behaviour.

There only significant factor which separates him from his colleagues in the department in which he worked is his age. He would estimate that the average age of his department colleagues is approximately 30 years of age. He is 53 years of age.

He can only assume that his dismissal came about because of his age.

The Respondent submits that they are an equal opportunities employer who understand their obligations under the Employment Equality Acts.

The Respondent strongly refutes the Complainant’s claim of discriminatory treatment on the age ground.

The issue for decision in this case is whether the Complainant was discriminatorily dismissed on the age ground within the meaning of the Employment Equality Acts.  

In evaluating the evidence before me, I must first consider whether the Complainant has established a prima facie case pursuant to Section 85A(1) of the Employment Equality Acts 1998 to 2015 which states:

“Where in any proceedings facts are established by or on behalf of a complainant from which it may be presumed that there has been discrimination in relation to him or her, it is for the respondent to prove the contrary.”

The Labour Court has held consistently that the facts from which the occurrence of discrimination may be inferred must be of ‘sufficient significance’ before a prima facie case is established and the burden of proof shifts to the respondent.  

The Labour Court, in Mitchell v Southern Health Board [2001] ELR 201 emphasised that, in the first instance, the claimant “must prove, on the balance of probabilities, the primary facts on which they rely in seeking to raise a presumption of unlawful discrimination”.   It continued:

 “It is only if these primary facts are established to the satisfaction of the Court, and they are regarded by the Court as being of sufficient significance to raise a presumption of discrimination, that the onus shifts to the respondent to prove that there was no infringement of the principle of equal treatment”.

In order to determine whether the Complainant has established a prima facie case a three tier test is employed.

·        First, the Complainant must establish that he is covered by the relevant discriminatory ground.

·        Second, the Complainant must establish that the specific treatment alleged has on balance occurred.

·        Third, it must be shown that the treatment was less favourable than the treatment which was or would have been afforded to another person in similar circumstances not covered by the relevant discriminatory ground.

With regard to satisfying the test under the first tier, the Complainant submits that he was significantly older than his colleagues who were recruited at the same time as him and who have not been dismissed from their employment with the Respondent. The Complainant’s assertion was not disputed by the Respondent. I find, therefore, that he is covered by the age ground.

With regard to the second tier of the test, the Complainant is alleging that since he was not made aware of the reason for his dismissal, he can only surmise that it was due to his age. It is not in dispute that the dismissal occurred.

In considering the third tier of the test, I note that the Complainant commenced employment with the Respondent less than two months prior to his dismissal. I find it difficult to accept that the Complainant’s age, which obviously did not impede his recruitment, could have been the reason for his dismissal within such a short period of time thereafter.

I have found in relation to the Complainant’s complaint of unfair dismissal under the Industrial Relations Act that the Respondent failed entirely to follow proper procedures in dealing with the alleged behavioural shortcomings of the complainant.   I am not convinced that another person in similar circumstances not covered by the relevant discriminatory ground would have been treated any differently be the Respondent.

Having considered the submissions of both parties and the evidence adduced at the hearing of this complaint, I find that the Complainant has not established a prima facie case and his complaint therefore is not well-founded.

Unfair dismissal during probation, allegation of discriminatory dismissal on the grounds of age